IN ORDER TO ACCESS THE SBC YAHOO! DIAL YOU MUST BE AT LEAST 18 YEARS OLD AND MUST ALREADY HAVE OR MUST NOW INSTALL THE CURRENT VERSION OF THE "REQUIRED SOFTWARE." THE REQUIRED SOFTWARE INCLUDES SOFTWARE FROM THE SBC INTERNET SERVICES COMPANY PROVIDING YOUR SERVICE (AMERITECH INTERACTIVE MEDIA SERVICES, INC., PACIFIC BELL INTERNET SERVICES, SNET DIVERSIFIED GROUP, INC., PRODIGY COMMUNICATIONS L.P. OR SOUTHWESTERN BELL INTERNET SERVICES, INC. (COLLECTIVELY REFERRED TO AS "SBC INTERNET SERVICES")) (AND ITS LICENSORS), YAHOO! INC ("YAHOO"), MACROMEDIA, INC, VISUAL NETWORKS, INC AND MICROSOFT CORPORATION. THIS CD-ROM PERMITS YOU TO INSTALL THE CURRENT VERSION OF THE REQUIRED SOFTWARE.
IN ORDER TO INSTALL THE REQUIRED SOFTWARE YOU MUST AGREE TO THE FOLLOWING SOFTWARE LICENSE AGREEMENTS (INCLUDING ANY TERMS THAT ARE DISPLAYED TO YOU IN A POP-UP SCREEN JUST BEFORE YOU CAN INSTALL THE SOFTWARE). THESE SOFTWARE LICENSE AGREEMENTS ARE LEGALLY BINDING CONTRACTS THAT SHOULD BE READ IN THEIR ENTIRETY.
IF YOU DECIDE TO DECLINE THE TERMS OF ANY OF THE REQUIRED SOFTWARE LICENSE AGREEMENTS YOU MAY NOT BE ABLE TO ACCESS SBC YAHOO! DIAL.
AFTER YOU HAVE READ ALL OF THE AGREEMENTS, CLICK ON THE "I ACCEPT" BUTTON BELOW IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS. YOU MAY THEREAFTER INSTALL AND USE THE SOFTWARE ACCORDING TO THE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS, THEN CLICK ON THE "I DECLINE" BUTTON, AND AS A RESULT YOU ARE NOT PERMITTED TO INSTALL OR USE THE SOFTWARE.
IN ADDITION, THIS CD-ROM CONTAINS OTHER "OPTIONAL SOFTWARE" YOU MAY WANT TO INSTALL. THESE INCLUDE ZONE ALARM FROM ZONE LABS, INC, AND CYBERPATROL FROM SURF CONTROL PLC. TERMS FOR THE USE OF THIS SOFTWARE WILL BE PRESENTED TO YOU JUST BEFORE YOU INSTALL IT. DECLINING THE INSTALL OF THE OPTIONAL SOFTWARE WILL NOT IMPACT YOUR ABILITY TO USE THE SBC YAHOO! DIAL. YOU AGREE AND ACKNOWLEDGE THAT NEITHER SBC NOR YAHOO IS LIABLE FOR OR RESPONSIBLE TO YOU FOR ANY OF THE OPTIONAL SOFTWARE, AND THAT YOU ARE INSTALLING AND USING THE OPTIONAL SOFTWARE AT YOUR OWN RISK.
YOU AGREE THAT BY YOUR INSTALLATION OF THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE LICENSE AGREEMENTS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEIR TERMS.
A. SBC SOFTWARE LICENSE AGREEMENT (INCLUDING THE ABOVE TERMS, "SBC AGREEMENT")
1. This SBC Agreement applies to all the software installed by this installer program that SBC licenses to you (together with each revised or updated version thereof) ("SBC Software") and any beta test software that you choose to use. This SBC Agreement also applies to SBC's liability to you, if any, with respect to any Required Software and any Optional Software for which SBC does not grant you a license (i.e., Required or Optional Software which you license directly from the manufacturer). (All of the above referenced software is, collectively with the SBC Software and any beta test software, referred to as the "Software" for purposes of this SBC Agreement). THE FOLLOWING SBC AGREEMENT EXPLAINS HOW YOU MAY USE THIS SOFTWARE. BY CLICKING ON THE "I ACCEPT" CHECK BOX IN THIS INSTALLER PROGRAM, YOU CONSENT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS BELOW AND YOU MAY, SUBJECT TO THOSE TERMS AND CONDITIONS, INSTALL AND USE THE SOFTWARE. IF YOU DISAGREE WITH ANY OF THE TERMS OR CONDITIONS BELOW, THEN SBC DOES NOT GRANT YOU A LICENSE TO USE THE SOFTWARE. CLICK ON THE "I DECLINE" BUTTON TO EXIT THE INSTALLER PROGRAM. IN THIS CASE YOU MAY NOT USE THE SOFTWARE OR ACCESS THE SBC YAHOO! DIAL.
2. The SBC Software, and if applicable any other Required Software or Optional Software, is licensed to you by SBC solely for your own individual use in connecting to and using the SBC Yahoo! Dial, or "Service" (and no other service) from within the 50 United States, the District of Columbia, and Puerto Rico, and for no other purpose. You may use or copy the Software only as instructed in writing by SBC. You may copy the Software for archival purposes, provided any copy must contain all of the original copyright and proprietary notices. Use or copying for any other purpose is prohibited and is a breach of this SBC Agreement. As between you and SBC, the Software files remain the property of SBC at all times, and SBC may make changes to the number and/or content of these files directly while you are connected to the Service. You accept the terms of this license by installing the Software. This license will terminate upon termination of your membership or right to use the Service. At that time, you must stop using the Software and either return the Software to SBC or destroy it.
You acknowledge and agree that SBC provides only the support and help-desk assistance for the Software that it makes generally available to the public from time to time.
SBC is not responsible in any way for any software, services, or devices used in connection with the Software, the Service or the Internet, unless such programs, software, services, or devices are recommended or provided to you by SBC.
You acknowledge the Software is proprietary and confidential to SBC and its licensors or other third party owners. This SBC Agreement does not convey any rights of ownership to you; title to and ownership of all rights in trademarks, service marks, patents, copyrights, trade secrets and other intellectual property in the Software and any copy shall remain with SBC and its licensors or other third party owners. You shall not transfer, sublicense, copy, reverse engineer, decompile, disassemble, translate or otherwise alter or modify the Software.
3. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND SBC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SBC DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SBC OR ITS SUPPLIERS BE LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, DATA, USE OR INFORMATION, EVEN IF SBC OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, SBC'S ENTIRE LIABILITY TO YOU FOR DIRECT DAMAGES YOU SUFFER AS A RESULT OF YOUR USE OF THE SOFTWARE SHALL BE LIMITED TO THE GREATER OF THE AMOUNT YOU PAID FOR THE SOFTWARE AND RELATED SBC YAHOO! DIAL OR US $2,500.00.
4. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. The Software and any underlying technology may not be exported outside the United States or to any foreign entity or "foreign person" as defined by U.S. government regulations, including without limitation, anyone who is not a citizen, national or lawful permanent resident of the United States. By downloading or using the Software, you are agreeing to the foregoing and you are warranting that you are not a "foreign person" or under the control of a foreign person.
The SBC Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS and in similar clauses in the NASA FAR Supplement.
5. You agree to indemnify and hold SBC harmless from any claim or demand, including reasonable attorneys' fees, made by any third party in connection with or arising out of your use of the Software, your violation of any terms or conditions of this SBC Agreement, your violation of applicable laws, or your violation of any rights of another person or entity.
6. This SBC Agreement shall be governed by the laws of the State of Texas, except conflict of law rules. The United Nations Convention on the International Sale of Goods shall not apply to this SBC Agreement. This SBC Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written.
7. If, for any reason, a court of competent jurisdiction finds any provision of this SBC Agreement, or portion thereof, unenforceable, then the remainder of the SBC Agreement shall continue in full force and effect and will be read to give maximum effect to the intention of the parties as reflected by its plain language.
8. SBC's failure, in any instance, to exercise any of its rights under this SBC Agreement will not constitute a general waiver of such or any other rights hereunder.
9. Sections 2 - 9 will survive any termination of this SBC Agreement.
B. YAHOO SOFTWARE LICENSE AGREEMENT
THE FOLLOWING AGREEMENT EXPLAINS HOW YOU MAY USE THE YAHOO WEB PROPERTIES AND THE YAHOO SOFTWARE INSTALLED BY THIS INSTALLER PROGRAM. BY CLICKING ON THE "I ACCEPT" CHECK BOX IN THIS INSTALLER PROGRAM, YOU CONSENT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS BELOW AND YOU MAY, SUBJECT TO THOSE TERMS AND CONDITIONS, INSTALL AND USE YAHOO SOFTWARE. IF YOU DISAGREE WITH ANY OF THE TERMS OR CONDITIONS BELOW, THEN YAHOO DOES NOT GRANT YOU A LICENSE TO USE THE YAHOO SOFTWARE OR TO USE THE YAHOO WEB SITE; CLICK ON THE "I DECLINE" BUTTON TO EXIT THE INSTALLER PROGRAM.
1. Licensed Uses and Restrictions.
By accepting the terms of this Agreement, you represent to Yahoo! and its affiliates (referred to collectively for purposes of this Yahoo! Software License Agreement as "Licensor") that you are at least eighteen (18) years old. The Yahoo Software applications, documentation, and local computer files installed or utilized by the installer application (referred to collectively for purposes of this Yahoo! Software License agreement as the "Yahoo Software") are owned by Licensor (or Licensor's own licensors) and are licensed to you on a worldwide (except as limited below), non-exclusive, non-sublicenseable basis on the terms and conditions set forth herein. This Software License Agreement defines legal use of the Yahoo Software, all updates or revisions thereto or Licensor substitutions therefore, and any copies of the foregoing made by or for you. All rights not expressly granted to you are reserved by Licensor.
a. YOU MAY install and personally use the Yahoo Software and any updates thereto furnished by Licensor (in its sole discretion) in object code form on a single personal computer owned or controlled by you and may use the Yahoo Software for your own noncommercial use or benefit. You may make a single archival copy thereof, which must contain all copyright and other proprietary notices present in the original Yahoo Software. Your license to the Yahoo Software under this Software License Agreement continues until it is terminated by either party. You may terminate the Software License Agreement by discontinuing use of all or any of the Yahoo Software and by destroying all your copies of the applicable Yahoo Software. This Software License Agreement terminates automatically if (a) you violate any of the terms or conditions of this Agreement, (b) Licensor publicly posts a written notice of termination on Licensor's Web site or sends a written notice of termination to you directly; (c) you attempt to transfer a copy of the Yahoo Software or assign or delegate your rights under this Software License Agreement to any third party, which transfer, assignment, or delegation will be null and void, or; (d) Licensor revokes this Software License Agreement or issues a new software license agreement in writing and conditions your continued use of the Yahoo Software upon acceptance of the new agreement. All changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on Licensor's Web site(s), or by electronic or conventional mail, or by any other means by which you may obtain notice thereof. Use of the Yahoo Software after such notice constitutes acceptance of such changes, modifications or additions.
b. YOU MAY NOT decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) from the Yahoo Software or any portion thereof, or seek to obtain intellectual property protection on the Yahoo Software or any portion thereof. Neither may you incorporate the Yahoo Software into any computer chip or the firmware of a computing device manufactured by or for you. You also may not, under any circumstances:
(i) Use the Yahoo Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Yahoo Terms of Service or this Software License Agreement, nor interfere with or disrupt the Yahoo computer networks, Web sites, or services connection with or accessed by the Yahoo Software.
(ii) USE THE YAHOO SOFTWARE TO OPERATE A BUSINESS OR COMMERCIAL ENTITY OF ANY KIND OR FOR USE BY OR FOR THE BENEFIT OF ANY OTHER PERSON OR ENTITY. YOU MAY NOT USE THE YAHOO SOFTWARE TO OPERATE NUCLEAR FACILITIES, LIFE SUPPORT OR OTHER MEDICAL EQUIPMENT, MANUFACTURING OR CONSTRUCTION EQUIPMENT, WEAPONS SYSTEMS, AIRCRAFT OR NAUTICAL NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION WHERE HUMAN LIFE OR PROPERTY MAY BE AT STAKE. YOU UNDERSTAND THAT THE YAHOO SOFTWARE IS NOT DESIGNED FOR SUCH PURPOSES AND THAT ITS FAILURE IN SUCH CASES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE FOR WHICH YAHOO IS NOT RESPONSIBLE;
(iii) USE THE YAHOO SOFTWARE WHILE DRIVING, BIKING, BOATING, OPERATING HEAVY MACHINERY OR ENGAGING IN ANY OTHER POTENTIALLY HAZARDOUS ACTIVITY. YOU UNDERSTAND THAT DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE MAY RESULT FROM USE OF THE YAHOO SOFTWARE WHILE ENGAGED IN THESE ACTIVITIES;
(iv) use, acquire, ship, transport, export, or re-export the Yahoo Software, except as authorized by Licensor and as permitted by applicable law. In particular, but without limitation, the Yahoo Software may not be acquired, shipped, transported, exported, or re-exported (1) into (or to a national or resident of) any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. You represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list;
(v) sell, lease, loan, distribute, transfer or sublicense the Yahoo Software or access thereto or derive income from the use or provision of the Yahoo Software, whether for direct commercial or monetary gain or otherwise, without Licensor's prior, express, written permission;
(vi) transfer your rights under this Software License Agreement to another person or entity, or;
(vii) misrepresent your identity or harass, slander, defame, misrepresent, or otherwise violate the rights of any third party through use of the Yahoo Software, or make available through the Yahoo Software any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. The burden of determining that any material is not protected by copyright rests with you.
2. Ownership and Relationship of Parties.
The Yahoo Software is protected by copyrights, trademarks, service marks, international treaties and/or other proprietary rights and laws of the U.S. and other countries. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this Software License Agreement and in the Yahoo Terms of Service. Licensor and Licensor's own technology licensors own all rights, title, and interest in and to their applicable contributions to the Yahoo Software. This Software License Agreement grants you no right, title, or interest in any intellectual property owned or licensed by Licensor, including (but not limited to) the Yahoo Software and Licensor trademarks, and creates no relationship between yourself and Licensor's technology licensors, or between you and Licensor other than that of Licensor to licensee. All rights not granted to you are reserved by their owners. Except as specifically permitted by the Yahoo Terms of Service and this Software License Agreement, you may not copy or make any use of the Yahoo Software or any portion thereof. You not use the Yahoo Software or any variations or derivatives thereof, other than as specified in this Agreement or as permitted by applicable law, without Licensor's prior written approval.
The Yahoo Software, and its components contain software licensed from third parties ("Third Party Software"). The Third Party Software enables this application to perform certain functions, including without limitation, access proprietary data on third party data servers. You agree that you will use the Yahoo Software, and any data accessed through the Yahoo Software for your own personal non-commercial use only. You agree not to assign, copy, transfer or transmit the Yahoo Software, or any portion thereof, or any data obtained therefrom to any third party. YOU AGREE NOT TO USE OR EXPLOIT ANY DATA, THE YAHOO SOFTWARE, OR ANY COMPONENTS OF THE YAHOO SOFTWARE, OR TO REMOVE, REVERSE ENGINEER, DECOMPILE, OR DISASSEMBLE SAID YAHOO SOFTWARE OR ITS COMPONENTS. Your license to use the Yahoo Software, its components, and any third party data will terminate if you violate these restrictions. If your license terminates, you agree to cease any and all use of the Yahoo Software, its components, and any third party data. All rights in any third party data, any third party software, and any third party data servers, including all ownership rights are reserved and remain with the respective third parties. You agree that said third parties may enforce their rights under this Agreement against you directly in their own name.
3. Support and Software Updates.
Licensor may elect to provide you with customer support and/or software upgrades, enhancements, or modifications for the Yahoo Software (collectively, "Support"), in its sole discretion, and may terminate such Support at any time without notice to you. Licensor reserves the right to charge you for any Support it provides but will make a schedule of those charges available to you prior to your incurring any costs. You agree to pay all fees and charges incurred through your use of Support at the rates in effect for the billing period in which such fees and charges are incurred. All fees and charges shall be billed to and paid for by you. You will pay all applicable taxes relating to use Support through your account.
Yahoo may change, suspend or discontinue any aspect of the Yahoo Software or Yahoo Web services at any time, including the availability of any Yahoo Software feature, database, or content. Yahoo may also impose limits on certain features and services or restrict your access to parts or all of the Yahoo Software or Web site without notice or liability.
4. Fees and Payments.
Licensor reserves the right to charge fees for future use of or access to the Yahoo Software or the Yahoo services and Web sites (collectively, "Yahoo Software Services") in Licensor's sole discretion. However, in no event will you be charged for access to portions of the Yahoo Software Services unless Licensor makes available a schedule of such charges. You are solely responsible for obtaining and maintaining all telephone, computer hardware, software, and other equipment needed for access to and use of the Yahoo Software Services and all for charges you incur related thereto. You agree to pay all fees and charges incurred through your use of the Yahoo Software Services at the rates in effect for the billing period in which such fees and charges are incurred, including, but not limited to charges for any products or services offered for sale through the Yahoo Software Services by Yahoo or by any other vendor or service provider. All fees and charges shall be billed to and paid for by you. You shall pay all applicable taxes relating to use of the Yahoo Software Services through your account.
5. Disclaimer of Warranties by Licensor.
USE OF THE YAHOO SOFTWARE AND ANY DATA ACCESSED THEREFROM IS ENTIRELY AT YOUR SOLE RISK. THEY ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. LICENSOR, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND ASSIGNS (COLLECTIVELY, "LICENSOR ENTITIES") AND THEIR OWN LICENSORS DO NOT REPRESENT THAT THE YAHOO SOFTWARE OR ANY DATA ACCESSED THEREFROM IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. THE LICENSOR ENTITIES AND THEIR LICENSORS EXPRESSLY DISCLAIM ANY WRITTEN OR ORAL REPRESENTATIONS WHICH CONTRADICT THIS SOFTWARE LICENSE AGREEMENT AND ANY AND ALL IMPLIED WARRANTIES PERTAINING TO THE YAHOO SOFTWARE AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE YAHOO SOFTWARE AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IF THE YAHOO SOFTWARE OR ANY DATA ACCESSED THEREFROM PROVES DEFECTIVE, YOU (AND NOT THE YAHOO ENTITIES OR THEIR LICENSORS) ASSUME THE ENTIRE COST OF ALL NECESSARY REPAIR TO THE YAHOO SOFTWARE OR TO YOUR COMPUTER SYSTEMS, CORRECTION OF INACCURATE DATA, OR INJURY OF ANY KIND, EVEN IF THE LICENSOR ENTITIES OR THEIR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH A DEFECT OR DAMAGES. SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
Yahoo and its third party suppliers and licensors reserve the right to delete data from their servers, or prevent access to their servers or to change data categories for any reason that Yahoo or said third parties deem sufficient in their sole discretion at any time, without notice. Yahoo reserves the right to discontinue use of any component of the Yahoo Software at any time without notice. Neither Yahoo nor Yahoo's suppliers are obligated to provide you with any new enhanced or additional data types or categories in the future. Neither Yahoo nor its third party suppliers and licensors warrant the results that will be obtained by your use of the Yahoo Software or any data Server.
6. Limitation of Liability.
THE LICENSOR ENTITIES AND THEIR OWN LICENSORS WILL NOT BE LIABLE TO YOU FOR CLAIMS AND LIABILITIES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE YAHOO SOFTWARE BY YOURSELF OR BY THIRD PARTIES, TO THE USE OR NON-USE OF ANY BROKERAGE FIRM OR DEALER, OR TO THE SALE OR PURCHASE OF ANY SECURITY, WHETHER SUCH CLAIMS AND LIABILITIES ARE BASED ON ANY LEGAL OR EQUITABLE THEORY. THE LICENSOR ENTITIES AND THEIR LICENSORS WILL NEVER BE LIABLE TO YOU FOR ANY AND ALL DIRECT, INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE YAHOO SOFTWARE, WHETHER SUCH DAMAGE CLAIMS ARE BROUGHT UNDER ANY THEORY OF LAW OR EQUITY. DAMAGES EXCLUDED BY THIS CLAUSE INCLUDE, WITHOUT LIMITATION, THOSE FOR LOSS OF BUSINESS PROFITS, INJURY TO PERSON OR PROPERTY, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR PERSONAL INFORMATION. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS RESTRICTION MAY NOT APPLY TO YOU. YAHOO IS NOT LIABLE TO YOU FOR DIRECT DAMAGES OF ANY KIND IN CONNECTION WITH ANY THIRD PARTY SOFTWARE, ANY DATA ACCESSED THROUGH THE YAHOO SOFTWARE, OR ACCESS TO OR INABILITY TO ACCESS ANY DATA SERVERS.
INFORMATION PROVIDED THROUGH THE YAHOO SOFTWARE, INCLUDING ANALYSIS, QUOTES, AND FINANCIAL DATA, MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND THE LICENSOR ENTITIES AND THEIR LICENSORS WILL HAVE NO LIABILITY WITH RESPECT THERETO.
LICENSOR DOES NOT REPRESENT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, OR OTHER INFORMATION DISPLAYED, UPLOADED, OR DISTRIBUTED THROUGH THE YAHOO SOFTWARE. YOU ACKNOWLEDGE THAT ANY RELIANCE UPON ANY SUCH OPINION, ADVICE, STATEMENT, MEMORANDUM, OR INFORMATION SHALL BE AT YOUR SOLE RISK. LICENSOR MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE YAHOO SOFTWARE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE YAHOO SOFTWARE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU, INCLUDING, BUT NOT LIMITED TO, CONTENT, HOURS OF AVAILABILITY, AND EQUIPMENT NEEDED FOR ACCESS OR USE THE YAHOO SOFTWARE SERVICES, AND THE LICENSOR ENTITIES WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU ARISING THEREFROM OR RELATED THERETO. IN NO EVENT WILL THE LICENSOR ENTITIES' DIRECT DAMAGES LIABILITY TO YOU EXCEED (COLLECTIVELY) $1.00 U.S.
7. Indemnification.
You agree to indemnify and hold the Licensor Entities harmless from any claim or demand, including reasonable attorneys' fees, made by any third party in connection with or arising out of your use of the Yahoo Software, your violation of any terms or conditions of this Software License Agreement, your violation of applicable laws, or your violation of any rights of another person or entity.
8. Government End Users.
If the Yahoo Software and related documentation are supplied to or purchased by or on behalf of the United States Government, then the Yahoo Software is deemed to be "commercial software" as that term is used in the Federal Acquisition Regulation system. Rights of the United States shall not exceed the minimum rights set forth in FAR 52.227-19 for "restricted computer software". All other terms and conditions of this Software License Agreement apply.
9. Controlling Law.
This Software License Agreement shall be governed by the laws of the United States (as applied by federal courts sitting in the State of California) and of the State of California, except conflict of law rules. You consent to exclusive jurisdiction and venue in Santa Clara County, California and waive the defense of forum non-conveniens. The United Nations Convention on the International Sale of Goods shall not apply to this Software License Agreement.
10. Severability.
If, for any reason, a court of competent jurisdiction finds any provision of this Software License Agreement, or portion thereof, unenforceable, then the remainder of the Software License Agreement shall continue in full force and effect and will be read to give maximum effect to the intention of the parties as reflected by its plain language.
11. No General Waiver.
Licensor's failure, in any instance, to exercise any of its rights under this Software License Agreement will not constitute a general waiver of such or any other rights hereunder.
12. Amendments.
Licensor reserves the right to revise this Software License Agreement at any time and you are deemed to be aware of and bound by any changes upon publication on our Web site(s).
13. Complete Agreement.
This Software License Agreement and the current version of the Yahoo Terms of Service constitute the entire understanding between the parties respecting use of the Yahoo Software and Content and supersede all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Software License Agreement will be binding unless made by an authorized Licensor representative acting in his or her official capacity. No third party constitutes an authorized Licensor representative for this purpose. In the event of any conflict between the terms and conditions of this Software License Agreement and those in the Yahoo Terms of Service, the terms and conditions of this Software License Agreement will control, except to the extent that the Yahoo Terms of Service impose additional restrictions and liabilities on your actions.
14. Surviving Provisions.
Sections 2, 4, 5, 6, 7, 8, 9, and 10-14 will survive any termination of this Agreement.
C. MACROMEDIA SOFTWARE LICENSE AGREEMENT
1. Definition
(a) "Macromedia Software" means the software program covered by this Agreement, and all related updates supplied by Macromedia.
(b) "Macromedia Product" means the Macromedia Software and any related documentation, models and multimedia content (such as animation, sound and graphics), and all related updates supplied by Macromedia.
2. License
This Agreement allows you to:
(a) Use the Macromedia Product on a single desktop computer that has a Windows PC (including Windows 95, 98, 2000, NT and ME), a Macintosh desktop operating system, a Linux desktop operating system, or a Solaris desktop operating system; provided, however, that, notwithstanding anything contrary contained herein, you may not use the Macromedia Product from any non-PC product, including, but not limited to, a web appliance, set top box (STB), handheld, phone, or web pad device.
(b) Make one copy of the Macromedia Product in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends found on the original.
(c) Certain rights are not granted under this Agreement, but may be available under a separate agreement.
3. Restrictions
You may not make or distribute copies of the Macromedia Product, or transfer the Macromedia Product from one hardware product or medium to another or over a network. You may not decompile, reverse engineer, disassemble, or otherwise reduce the Macromedia Software to a human-perceivable form. You may not modify, sell, rent, transfer, resell for profit, distribute or create derivative works based upon the Macromedia Product or any part thereof. You will not export or reexport, directly or indirectly, the Macromedia Product into any country prohibited by the United States Export Administration Act and the regulations thereunder.
4. Ownership
The foregoing license gives you limited rights to use the Macromedia Product. You do not become the owner of, and Macromedia and its suppliers retain title to, the Macromedia Product, and all copies thereof. All rights not specifically granted in this Agreement, including Federal and International Copyrights, are reserved by Macromedia.
5. Disclaimer of warranties and of technical support
The Macromedia Product is provided to you free of charge, and on an "AS IS" basis, without any technical support or warranty of any kind from Macromedia including, without limitation, a warranty of merchantability, fitness for a particular purpose and non-infringement. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE. These limitations or exclusions of warranties and liability do not affect or prejudice the statutory rights of a consumer; i.e., a person acquiring goods otherwise than in the course of a business.
6. Limitation of damages
NEITHER MACROMEDIA NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MACROMEDIA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. The limited warranty, exclusive remedies and limited liability set forth above are fundamental elements of the basis of the bargain between Macromedia and you. You agree that Macromedia would not be able to provide the Macromedia Software on an economic basis without such limitations.
7. Government end users (USA only)
RESTRICTED RIGHTS LEGEND The Macromedia Software is "Restricted Computer Software." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable." Manufacturer: Macromedia, Inc., 600 Townsend, San Francisco, CA 94103.
8. General
This Agreement shall be governed by the internal laws of the State of California. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. All questions concerning this Agreement shall be directed to: Macromedia, Inc., 600 Townsend Street, San Francisco, CA 94103, Attention: General Counsel.
D. VISUAL NETWORKS
1. License.
a. Grant of License; Term. Licensor grants to Licensee and Licensee accepts from Licensor a non-exclusive, non-transferable license to use IP InSight Client during the term of this Agreement. This license shall continue in perpetuity unless sooner terminated by the provisions of this Agreement.
b. Restrictions on Use; Non-Disclosure. Licensor authorizes Licensee to use IP InSight Client on it single machine. Licensee acknowledges and agrees that IP InSight Client is the confidential and proprietary information of Licensor and that this Agreement grants Licensee no title or right of ownership in IP InSight Client. Licensee shall not disclose and shall exercise all reasonable precautions to prevent access to or disclosure of IP InSight Client except to persons whose access to them is necessary for the effective and efficient use of IP InSight Client by Licensee. Licensee agrees that violation of this Section 1 shall cause Licensor irreparable harm, and shall be responsible for all damages caused by unauthorized disclosure or copying by persons having access to IP InSight Client in the possession of Licensee. Licensee agrees that it will not attempt to duplicate, reproduce, modify, translate, reverse engineer, decompile, disassemble, create derivative works, or in any way misappropriate IP InSight Client (including operation of IP InSight Client for competitive analysis of IP InSight Client or for creation of software with similar functionality). Licensee agrees not to remove or destroy any proprietary markings or proprietary legends placed upon or contained within IP InSight Client or any related materials or documentation.
c. Non-Assignability. This License is restricted solely and exclusively to Licensee and may not be assigned sub-leased, sub-licensed, sold, offered for sale, disposed of, encumbered or mortgaged without Licensor's prior written permission.
2. Limited Warranty. Licensor warrants that IP InSight Client will be free from defects in design and operation, and will be usable in the environment for which it has been designed. Licensor warrants its rights to license IP InSight Client and agrees to defend, or settle at its option, any action at law against Licensee arising from a claim that Licensee's permitted use of IP InSight Client under this Agreement infringes any copyright or other proprietary right of a third party, provided Licensee gives Licensor prompt notice of any such claim within ten (10) days of Licensee's notice thereof and provides reasonable assistance in its defense, with counsel designated by Licensor. Licensor shall control Licensee's defense in any such litigation or settlement proceeding. ALL OTHER WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.
3. Limitation of Liability. LICENSEE AGREES THAT ITS SOLE AND EXCLUSIVE REMEDIES FOR ANY DAMAGE OR LOSS IN ANY WAY CONNECTED WITH IP INSIGHT CLIENT, WHETHER BY LICENSOR'S BREACH OF ANY EXPRESS OR IMPLIED WARRANTY (EXCEPT AGAINST INFRINGEMENT), NEGLIGENCE, OR ANY BREACH OF ANY OTHER DUTY, SHALL BE, AT LICENSOR'S OPTION, REPAIR OR REPLACEMENT OF IP INSIGHT CLIENT OR RETURN OF OR CREDIT FOR ANY APPROPRIATE PORTION OF ANY PAYMENT MADE OR TO BE MADE BY LICENSEE WITH RESPECT TO IP INSIGHT CLIENT. UNDER NO CIRCUMSTANCES (INCLUDING BREACH OF THE WARRANTY AGAINST INFRINGEMENT) AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOOD WILL, DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF THE FEES AND CHARGES PAID HEREUNDER, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF.
4. Termination. Licensor shall have the right without further obligation or liability to Licensee to terminate this Agreement if Licensee commits any breach of this Agreement, including attempts to misappropriate, tamper with, or misuse IP InSight Client. Licensor's termination of this Agreement or repossession of IP InSight Client shall be without prejudice to any other remedies that Licensor may lawfully have. Upon the termination of this Agreement, the license and al1 other rights granted hereunder to Licensee shall immediately cease.
a. Limitations on Licensor's Obligations. Any modification or attempted modification of IP InSight Client by Licensee or any failure by Licensee to implement improvements and updates to IP InSight Client as supplied by Licensor shall void the obligations of Licensor under this Agreement, end this Agreement, and entitle Licensor to seek appropriate legal remedies, unless Licensee has obtained prior written authorization from Licensor permitting such modification, attempted modifications or failure to implement.
b. Entire Agreement; Amendment or Modification. This Agreement constitutes the entire agreement between the parties, and supersedes al1 prior agreements on the subject matter hereof. Any waiver, amendment or modification of any of the provisions of this Agreement shall not be effective unless made in writing and signed by the parties.
c. Severability; Attorney's Fees. If any provision of this Agreement or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. In the event of litigation between the parties concerning this Agreement, the prevailing party shall be entitled to its reasonable attorneys' fees.
YOU ACKNOWLEDGE THAT YOU HAVE READ THE ABOVE AGREEMENTS AND UNDERSTAND THEM. BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, YOU CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF EACH AGREEMENT WITH RESPECT TO YOUR USE OF THE COVERED SOFTWARE PRODUCT.
IF YOU AGREE WITH EACH AND EVERY TERM AND AGREEMENT SET FORTH ABOVE, CLICK ON THE "I ACCEPT" BUTTON BELOW AND CONTINUE USING THE LICENSED SOFTWARE.
IF YOU DO NOT AGREE WITH EACH AND EVERY TERM SET FORTH ABOVE, CLICK ON THE "I DECLINE" BUTTON BELOW. THEREAFTER, DO NOT INSTALL OR USE THE LICENSED SOFTWARE.
